REPORT ON THE SITUATION OF HUMAN
RIGHTS IN ECUADOR
This report examines the situation of human rights in Ecuador. As the principal organ of the Organization of American States mandated to promote and protect human rights in the Americas, the Commission monitors human rights developments in each member state, and periodically deems it useful to report on the situation in a particular country and to formulate corresponding recommendations to that Government. This Report aims to assist the Government of Ecuador by analyzing the human rights situation in that country in relation to its undertakings as a Party to the American Convention, and by offering recommendations to enhance compliance with its inter-American human rights obligations.
The Commission's study of the human rights situation in Ecuador is based on information compiled through its ongoing work of monitoring developments and processing individual cases, as well as on the data and insights gathered during an on site visit to that country in November of 1994. The Report focusses primarily on the period from 1992 through September of 1996.
Legal and Institutional Guarantees in the Republic of Ecuador
The introductory section of this report provides an overview of the legal and institutional guarantees in place in Ecuador. Constitutional reforms adopted at the close of 1995 have reconfigured and expanded certain protections, for example, amplifying the right to amparo and adding a right to petition for habeas data. These reforms also established the Office of Ombudsman, to be filled by Congressional appointment, with a mandate to maintain vigilance over the fundamental rights guaranteed in the Constitution. As of April of 1997, the Ombudsman had yet to be named, so the Commission looks forward to receiving further information about the steps taken to make this Office operational.
With respect to the security forces, the Report notes the practice of trying agents of these institutions charged with human rights abuses before their respective institutions of special jurisdiction, rather than before ordinary civilian tribunals. As the Commission has previously affirmed, human rights violations should be tried by the appropriate instance of civilian justice. This Report also draws attention to the repeated imposition by the Executive of exceptional measures involving the suspension of guarantees normally in place. With respect to the use of such measures to deputize the military to assist in fighting crime, the Commission has previously expressed that actions which employ the military to perform police functions raise significant concerns, given the disparate formation and mandates of these institutions. It will be recalled that, in accordance with Article 27 of the American Convention, the imposition of exceptional measures is permissible only when the criteria of necessity and proportionality are met, and that any suspension of guarantees must be made known to the other member states through notification to the Secretary General.
The Socioeconomic Context and Attendant Rights
According to domestic studies, more than half of the population of Ecuador lives in conditions of poverty. While the situation varies within the country, poverty is especially prevalent in the rural and urban areas of Ecuador generally, and in the peripheral areas which ring the larger cities. The distribution of wealth greatly favors those within the upper income brackets, and social spending as a percentage of GNP has fallen sharply over the last decade.
The causes and consequences of poverty are reflected in a range of issues. The relevant authorities acknowledge that unemployment and underemployment are chronic problems. The public has expressed concern about the decreasing availability and quality of health care in the public sector. While safe drinking water is available to most of the urban population, only 37% of the rural population enjoys similar access. Data compiled by national and international institutions indicates that the situation of poverty is having a disproportionately harsh impact on certain sectors of Ecuadorean society, including minors. Approximately 45% of children under five suffer from malnutrition.
The Government of Ecuador has undertaken a number of programs aimed at expanding access to basic services to those in need, including the Social Investment Fund of Ecuador created in 1993. Given that conditions of poverty may inhibit the ability of individuals to freely and fully enjoy their human rights, the current inability of a large segment of Ecuadorean society to satisfy its basic needs gives rise to profound concern, and calls for the adoption of additional measures to improve conditions for the affected population.
The Right to Judicial Recourse and the Administration of Justice in Ecuador
An examination of the human rights situation in Ecuador indicates that extant human rights protections are significantly weakened by deficiencies in the administration of justice. As the judiciary is principally responsible for interpreting and applying the law, the courts play a fundamental role in ensuring the realization of protected rights and freedoms, and inadequacies in the system jeopardize the ability of the individual to access justice. According to the information received and analyzed by the Commission, the right to judicial protection is impeded by: pervasive delay in the judicial system; barriers to the impartial and independent administration of justice, including corruption and the impermanence of certain judicial appointments; and the lack of access to judicial protection due to the dearth of public defenders and the unresponsive distribution of facilities in certain rural areas. Reports indicate that the judicial system is substantially underfunded, and that the scarcity of resources contributes to each of the foregoing problems.
Delay within the judiciary is both a cause and a consequence of other potential violations. Within the criminal justice system, prolonged preventive detention may result in grave injustice in the case individuals who are eventually tried and found innocent, or who are preventively detained in excess of the penalty prescribed for the offense. In extreme cases, prolonged delay in conducting proceedings may have the effect of extending a form of impunity to the perpetrators. Those who have been victimized by crime also suffer, as their right to judicial protection is delayed. Delay is not only symptomatic of the criminal justice system, it extends to many facets of the administration of justice.
The Right to Life
The Commission has examined the right to life in Ecuador in light of its fundamental status under the American Convention and the Constitution of Ecuador. The allegations under study by the Commission are isolated but consistent, and relate to: killings by members of the police and military; deaths of persons in the custody of state agents; excessive use of force by members of the security forces; killings and persecution by paramilitary style bands; and several disappearances. The cases under study share a common claim that the domestic processes the State is required to make available to respond to violations of this right were neither available nor effective.
States Parties to the American Convention have an obligation to guarantee the inviolability of life, and to take reasonable measures to prevent situations which could result in the arbitrary deprivation of life. Allegations that this right has been violated require corresponding measures to investigate, and where appropriate, to submit the perpetrators to the appropriate judicial processes and punishment, and to compensate the victim or the surviving family members.
The Right to Humane Treatment
An area of concern for the Commission with respect to the human rights situation in Ecuador is the treatment accorded by some members of the police and armed forces to persons in their custody. In particular, the Commission has received persistent reports alleging the application of inhumane treatment or torture as a means of coercing statements from detainees.
The use of such practices by the police has periodically been identified as a problem by the Government, with the adoption of certain measures in response. The abolition of the Criminal Investigation Service in 1991 was one such noteworthy measure. Pursuant to amendments adopted in 1995, the Constitution now specifies that no person may be interrogated by the police or other authority without the presence of private counsel or appointed counsel. Further, any judicial measure which fails to comply will be deemed to lack probative value. While the Commission welcomes this advance, which has the potential to provide a critical safeguard, it must note that its implementation appears problematic. While those who can afford to retain private counsel are able to invoke this protection in a timely manner, the vast majority of detainees are unable to contract their own counsel, and the number of public defenders available remains severely disproportionate to the need. Current reports indicate that detainees so situated are unable to avail themselves of this protection.
It is axiomatic that, when an individual is in the custody of state agents, the State is responsible for the treatment accorded. Accordingly, it is indispensable that detainees be subject to judicial supervision at every stage of the criminal process, and that processes are in place to ensure that any denunciation of mistreatment is met with corresponding processes of investigation and sanction.
The Human Rights Situation of Individuals Incarcerated Within the Penal System of Ecuador
Among the effects of the endemic delay which characterizes the criminal justice system is overcrowding in many of Ecuador's prisons, as detainees may be housed for years while awaiting trial. A rise in arrests related to narcotics trafficking or consumption has placed an additional burden on facilities. Overcrowding is most pronounced in the urban facilities where the majority of prisoners are housed. Official figures indicate the scope of the problem, with some facilities housing as many as twice the number of inmates for which they were designed. Governmental action to relieve the resulting pressure, such as a prison census to identify those eligible for provisional release and the passage of legislation establishing maximum periods for preventive detention (in all but drug-related cases), must be complemented by additional measures.
The situation of overcrowding in many of these facilities is aggravated by the inadequate provision of resources to meet the basic needs of those housed. For example, a number of the facilities are outdated, with inadequate infrastructure and archaic physical plant. Studies of the prison system indicate that some inmates do not have regular access to adequate facilities for sanitation and hygiene. The Commission has received consistent reports that inmates depend on friends or relatives to supplement the food provided, as it is not adequate for their nutritional needs. The lack of human and material resources has the further consequence of severely impeding the stated mission of the prison system to rehabilitate those interned.
The Commission is also particularly concerned about the availability of medical and psychological care, which are reported to be offered in some facilities but rarely available in others. Prison authorities indicated that procedural and structural barriers could delay or hinder the delivery of treatment, thereby placing bureaucratic obstacles above the physical and mental integrity of the inmate.
The Right to Liberty
National authorities have acknowledged certain deficiencies in the processes employed to arrest and detain individuals under suspicion for having committed an offense. Among these, for example, is the frequent failure of law enforcement officers charged with effecting arrests to seek and obtain judicial warrants. However, the most severe problem the Commission has identified with respect to the right to liberty is the prolonged imposition of preventive detention. Due to excessive delays in bringing people to trial, and deficiencies in the system for provisional release on bail, the majority of the prison population languishes in jail without a judicial determination of their innocence or guilt. Government figures indicate that approximately 70% of those housed in Ecuadorean prisons are awaiting trial or sentencing. Individuals may wait for several years or more to be tried. In a number of documented instances, defendants have been detained in excess of the period prescribed for the crime charged.
Preventive detention is permissible under the American Convention, in accordance with the criteria set forth in Article 7, only until the point where its duration becomes unreasonable. The burden on an accused who has not been tried becomes greater as the detention continues. At a certain point, preventive detention is effectively transformed into a punishment imposed without a trial or a sentence, thereby inverting the presumption of innocence. When a person is deprived of liberty pending trial, it is incumbent upon the authorities to use special diligence in the conduct of proceedings to ensure that the length of detention does not become unreasonable.
The Human Rights Situation of the Inhabitants of the Interior of Ecuador Affected by Development Activities
The Commission has been examining the human rights situation in the Oriente for several years, in response to claims that oil exploitation activities in the region were contaminating the water, air and soil, thereby causing the people of the region to become sick and to have a greatly increased risk of serious illness.
By law, the ownership of all subsurface minerals resides in the State, and the Government exploits oil either directly through the State-owned oil company or indirectly through concessions or service contracts. Although the Government and the affected inhabitants disagree as to the full extent of the problem, they agree that oil development and exploitation have in fact caused contamination of the environment. The inhabitants of affected sectors have been exposed to the toxic byproducts of oil exploitation in their drinking and bathing water, in the air they breathe and in the soil they cultivate to produce food. Human exposure to these types of contaminants has been documented to adversely affect human health. In the case of the Oriente, emerging data reports the incidence of related sickness and indicates the considerable risk to human health and life posed by exposure to contamination.
The norms of the inter-American human rights system neither prevent nor discourage development; rather, they require that such activities take place under conditions of respect for the rights of affected individuals. The American Convention establishes the rights to life and physical integrity as fundamental and nonderogable, and the Constitution of Ecuador guarantees these rights, as well as the right of all inhabitants to live in a safe environment. The efforts that have been undertaken by the Government in this area, including the adoption of legislation to strengthen protections against pollution and the pursuit of clean up activities by private licensee companies, must be fully implemented and complemented by further action to remedy existing contamination and prevent future recurrences.
Human Rights Issues of Special Relevance to the Indigenous Inhabitants of the Country
The indigenous inhabitants of Ecuador, constituting between 35 and 45% of the population, have significantly redefined their relationship with the structures of national government and with the non-indigenous population in recent years. Indigenous peoples have created a network of local and regional representative organs, which work together through the national coordinating body CONAIE. These and other groups recently joined together to form the political movement Pachacutik, which actively participated in the 1996 elections.
The indigenous peoples of Ecuador face a number of serious obstacles to obtaining the full enjoyment of their rights under the American Convention. Significant segments of the indigenous population suffer the effects of severe poverty, and little social spending is directed toward their communities. Many indigenous individuals continue to be subject to discrimination in both the public and private sectors. They encounter obstacles in seeking to pursue their traditional relationship with the land and resources which are integral to their way of life, and in their related quest to practice and preserve their distinct cultures.
There have been certain noteworthy instances of collaboration between the Government and indigenous representatives, for example, with respect to the development of bilingual education programs. Another noteworthy initiative is reflected in the agreement negotiated between the Government and one segment of the Cofan people, according the latter special rights to use and control a portion of their traditional lands which had been incorporated into a national reserve. However, further progress is required to overcome the obstacles which continue to hinder the ability of indigenous individuals to enjoy their rights in conditions of equality with others.
The Human Rights of Afroecuadoreans
Between 5 and 10% of the population of Ecuador describes itself as Afroecuadorean. Although the law prohibits discrimination, and penalizes certain activities based on racism or racial hatred as criminal offenses, many Afroecuadoreans suffer the effects of pervasive discrimination on the part of civil society or the public sector. Afroecuadoreans are rarely represented in public life, and few if any have served in high appointed or elected office. The existence of racism in the private sector is cited by Afroecuadoreans as a severe impediment to their ability to fully and equally realize their rights.
Where a minority group has historically been subjected to forms of public or private discrimination, the existence of legislative prescriptions may not provide a sufficient mechanism for ensuring the right of all inhabitants to equality within society. Ensuring the right to equal protection of and before the law may require the adoption of positive measures, for example to ensure nondiscriminatory treatment in education and employment, to remedy and protect against public and private discrimination.
The Human Rights of Ecuadorean Women
The status of women in Ecuadorean society is the subject of vigorous dialogue and action within the country. Numerous governmental and nongovernmental institutions have worked to raise awareness of women's rights, and have achieved advances in areas including education, health and employment. Further gains are being pursued in these and other areas, including the right of women to be free from discrimination, the right to participate in political and public life, and the right to be free from violence.
Several anachronistic legislative provisions in force have the effect of restricting the rights of women. Additionally, while the equality of the sexes is recognized by law, various forms of discrimination against women continue, for example, in the spheres of employment and education, among others. Although the current Vice President is a woman, as are four of the 70 sitting Provincial Deputies, women remain extremely under-represented in the political institutions of the country. Additionally, national figures reflect that few women serve as judges.
The governmental and nongovernmental sectors have collaborated to produce notable advances in protecting the right of women to be free from violence. In 1994, the Government established special bureaus to receive complaints from victims of violence. In 1995, the legislature adopted the Law Against Violence to Women and the Family, and ratified the Inter-American Convention on the Prevention, Punishment, and Eradication of Violence Against Women. Further action must be taken by all three branches of Government, particularly the judiciary, to respond to and sanction the high incidence of violence against women.
The Commission is aware of certain legislative and administrative measures which have been adopted by the Government of Ecuador to prevent human rights violations. Some of these, such as the creation of the Office of the Ombudsman, or the requirement that the interrogation of any detainee take place in the presence of private or appointed counsel, require additional action before they can be fully realized.
The Commission welcomes the September 1996 establishment of the Truth and Justice Commission mandated to investigate and report on alleged human rights violations dating from the reimposition of civilian rule in 1979 to the present. The Commission encourages the authorities entrusted with this process to ensure the disclosure of the full truth about past human rights violations, along with measures to sanction those responsible and compensate those injured. (However, it should be noted that press reports indicate that the Truth and Justice Commission broke its relationship with the Bucaram Government on February 3, 1997.)
Having examined the situation of human rights in Ecuador in relation to the State's undertakings as a Party to the American Convention, the Commission has prepared this Report to set forth its analysis of the situation and recommendations for additional measures to be taken to advance in the protection of individual rights and freedoms.